P (PLP)

Hussain Shah | |

Pir Shah Hassan Shah Imam Shah | |

Nur Muhammad Fateh Muhammad Nika Shah Muhammad Shah Muhammad Shah Shah (D.4). (D.1). Shah (D.3). (D. 2). The property in dispute in this case belonged originally to Ghani Shah and his first cousin, Fazal Shah. Ghani Shah died issueless and his widow, Mst. Jafar Bibi, succeeded him along' with his mother, Mst. Aishan Bibi, widow of Muhammad Shah. Subsequently, Mst. Jafar Bibi also died and the whole of Ghani' Shah's property was then mutated in favour of Mst. Aishan Bibi. Some time later, Fazal Shah too died without leaving any male lineal descendant. He was survived, however, by two daughters, Mst. Aishan Bibi and Mst. Fatima Bibi, who were the plaintiffs in the suit out of which the present appeal has arisen. On Fazal Shah's death, his property was also mutated in favour of Mst. Aishan Bibi, widow of Muhammad Shah, who thus succeeded collaterally to Fazal Shah's property. The plaintiffs' case, however, was that she was allowed to take this property by way of maintenance only and with the consent of the plaintiffs who are married daughters of Fazal Shah. When Mst. Aishan Bibi died, the revenue authorities sanctioned 'mutation of the whole land which originally belonged to Ghani Shah and Fazal Shah in favour of the defendants who are the collaterals o Ghani Shah and Fazal Shah in the fifth degree. The plaintiffs came into Court on the allegation that they were preferential heirs to this property both under custom and under Muslim Law, The defendants resisted the suit and pointed out that the land which was under mortgage, had been redeemed by them. They set up their own preferential right to the property as collaterals of Muhammad Shah and claimed the land to be ancestral qua them. In the alternative, they pleaded that even if the land was not ancestral qua them, the plaintiffs had no right to succeed as compared with them, whether under custom or under personal law. The trial Court found that the land was not proved to be ancestral qua the defendants. It wag further held that the plaintiffs had no right to succeed to the land in competition with the defendants, whether under custom or under Muslim Law in respect of Ghani Shah's property. With regard to the property of Fazal Shah, it was held that, except for two khasra Nos. 1774/38 and 1773/38, which were non‑ancestral even qua Muhammad Shah, Muhammad Shah's widow, Mst. Aishan Bibi, had succeeded collaterally to it and succession had to be traced to Muhammad Shah and not to Fazal Shah. The defendants, as collaterals of Muhammad Shah, were adjudged to be the rightful heirs of this property to the exclusion of the plaintiffs. With regard to the two khasra numbers which were non‑ancestral qua Muhammad Shah, the plaintiffs were held entitled to succeed, but as one of the plaintiffs, namely Mst. Aishan Bibi, gave up her claim during the pendency of the suit, a decree was granted to Mst. Fatima Bibi alone for half of these khasra numbers. The suit was consequently dismissed, except for the half portion of the two khasra numbers mentioned above. On appeal, the learned Additional District Judge, Gujrat, upheld the findings of the trial Court and dismissed the appeal, but left the parties to bear their own costs. Mst. Fatima Bibi plaintiff has come up in second appeal to this Court. I might dispose of a preliminary point in this appeal first. The appeal was apparently out of time when presented to this Court, by one day. The appellant has applied for condonation of The delay in presenting the memorandum of appeal. It appears that the judgment was reserved in the lower Appellate Court after, the hearing of arguments, but the result was never communicated to both the parties or their counsel, although there is an endorsement towards the end of the judgment, dated 27th October 1948, that parties' counsel should be informed. Apparently, counsel for defendants only was informed but not the counsel for tire plaintiffs. An affidavit has been filed in this Court to the effect that the plaintiffs only came to know of the lower Appellate Court's decision in the middle of January 1949, through a clerk in the Additional District judge's office. In these circumstances there is, in my opinion, sufficient ground for extension of tithe under section 5 of the Limitation Act and I accordingly extend tire time. I now come to the merits of the case. There is no dispute between the parties as regards the portion of the land which had been decreed in favour of the plaintiff‑appellant, namely, half of two khasra numbers. It is also common ground that qua the defendants‑respondents, no part of the property is really ancestral. Regarding the property left by Ghani Shah, it is contended before me by learned counsel for the appellant that the plaintiff had the right to represent their father, Fazal Shah, when the succession opened after the death of Mst. Aishan Bibi, and consequently, they would be preferential heirs as compared with the defendants who are remoter collaterals. Mst, Aishan Bibi seems to have succeeded to the property of Ghani Shah as his mother, under the riwaj‑i‑am of the Gujrat District, as compiled by Mr. Williamson in 1922. It appears from the answer to question 79 that when a man dies leaving no male lineal descendants, no widow arid no daughters, or daughters' son, the inheritance successively devolves upon (1) the father, (2) the mother, (3) brothers or their male descendants, (4) paternal uncle or their descendants, (5) other collaterals, and (6) the taraf or village community as the case may be. The parties in this case are Syeds of tehsil Gujrat. In support of the contention that there is a right tit representation available to the daughters of Fazal Shah, learned counsel for the appellant has relied on "Hashmat Ali v. Nasib‑ul‑Nissa" (A. I. R. 1925 P. C. 99), "Fait‑ud‑Din v. Anian Ali' (56 P. L. R. 1910‑D. B., Supplement) and three unpublished judgments in Regular Second Appeal 1292 of 1947, Regular Second Appeal 2235 of 1926 and Regular Second Appeal 102 of 1941:. He has also referred to a judgment of the District Judge Gujranwala, in "Bahawal v. Bholi" decided on 22nd May 1942, a case relating to Jats of Gujrat District. In the Privy Council case, their Lordships observed that representation was a part of the rules of succession in that parti cular family. The brother's daughter was allowed the right of representation as against defendants who had no title to the land in dispute but who were setting up adverse possession. At the close of the judgment, their Lordships made certain general remarks to the effect that sex was not a bar to representation. Sharif, J. in Regular Second Appeal 102 of 1946 "Muhammad Aslam Khan v. Mst. Karam Nishan" relied on this judgment of their Lordship of the Privy Council as authority for the proposition that there was a general right of representation recognised in favour of females. In that case, the contest was between the brother's daughter and eight degree collaterals concerning non‑ancestral property. It is not clear to what tribe ‑lie parties to that case belonged but indications are that they were probably fats. At the same time, the learned judge remarked hat the right of representation would only come in, when a 2rson is recognised as an heir under customary law and not in her cases, e.g., not in the case of a sister. With all respect it seems to me that if a general right of representation is to be spelt out of the Privy Council ruling, then a sister may also conceivably have the right to represent her own father. I have, therefore; some difficulty in following this dictum. In Regular Second Appeal 1292 of 1947, which was decided Cornelius, J., on 29th April 1948, the dispute was between the daughters of an uncle or brother on tire one side and ninth degree collaterals of the last male holder on the other, with regard to non -ancestral property, and the parties were Jats of the Gujrat District. It was held that under custom the daughters of an uncle or brother were better heirs than ninth degree collaterals. In "Phalu v. Mst. Bhari", Regular Second Appeal 2235 of 1926, decided by a Division Bench on 9th April 1931, the property involved appears to have been ancestral land and the case seems to have been decided on its own peculiar facts. The collaterals of the ninth degree in that case were contending for possession against a grand daughter of the uncle of one, Alam, who was himself a grandfather of the last male holder. The parties were jats of Phalia Tehsil in the Gujrat District. The learned judges held that the plaintiffs‑ collateral s had failed to prove the custom in their favour and the riwaj‑i‑am of the, district concerned was of no assistance. The ruling does not seem to me to be in point. In 56 P. L. R. 1910 (Supplement), which was a case of Syeds of Kharkhanda in the Rohtak District, it was laid down that a widow of a male descendant, could represent her husband and a daughter could represent her father in the absence of male lineal descendants of the last holder. On the death of the widow of the last male holder, therefore, one nephew's widow was held entitled to succeed equally with the daughter of another. That case also appears to have been decided on the special family custom of the parties. The District Judge, Gujranwala, in "Bahawal v. Bholi" had held the daughters of the brother of the last male holder to be entitled to succeed as representing their father, among Jats of the Gujrat District. A similar argument has been advanced in respect of the property left by Fazal Shah, who died in 1939. In respect of this property, it is clear, Mst. Aishan Bibi succeeded collaterally and consequently, after the death of Mst. Aishan Bibi, the heirs had to be traced to her husband, Muhammad Shah and not to Fazal Shah. The plea of the plaintiffs that she had been allowed to take possession of this land by way of maintenance, with the plaintiffs consent, remains unsubstantiated on the file. There is ample authority for the view that a widow succeeding in such circumstances does so collaterally and the future heirs have to be referred to her husband and not to the last male holder. Reference in this connection may be made to Akhtar Abbas, etc. v. Nazar Abbas etc. (A. I. R. 1946 Lah. 10‑I). B.) and Chiragh Din, etc. v. Ujager Singh (A. I. R. 1946 Lah. 16‑F. B.). In the first of these authorities it was further observed that if the mother succeeds as such, being an heir under custom, on her death, the heirs would be traceable to her son, the last male holder. If a mother succeeds as such, obviously on her death the property will devolve on the heirs of her son, and this is supported by answer to Question 80 in the riwaj‑i‑am of the district compiled by Williamson. It seems to me that if the right of representation is conceded to the plaintiffs in this case, then they would be entitled to succeed as against the defendants‑respondents who are remoter collaterals of both Ghani Shah and Muhammad Shah than the plaintiffs' father. If, however, this right of representation is not a general one which could be allowed in their favour, then the plaintiffs would be out of Court. That there is a right of representation given to a widow who can succeed collaterally to land to which her husband would have succeeded if he had lived, is clear from the instance of Mst. Aishan Bibi in the present case. It is also borne out by the answer to Question 52 in the riwaj‑i‑am of the district, There is also Question 54 which reads as‑follows:‑-- "If a man dies leaving a widow or widows and either a daughter or daughters or brother or their descendants or uncles or their descendants, but no male lineal descendants within three generations upon whom will the inheritance devolve ?" The answer of all tribes is recorded as follows :‑-- "If there are no male descendants, the property goes first to widow or widows, after them to unmarried daughters till marriage : then to collaterals in their degrees. If there be no collaterals, then to married daughter or daughters." Prima facie, this answer would apply to ancestral property alone as there is nothing to show in the question or answer that it is intended to cover ancestral as well as non‑ancestral property. But if the same rule is applicable to non‑ancestral property, then obviously the plaintiffs could not succeed. In my opinion the question whether there is a right of representation available generally to females under custom and if so to what qualifications or conditions it is subject, is an important one which needs authoritative pronouncement from a larger Bench. The question is likely to arise in other cases. From the authorities cited above I am not quite clear whether such a rule of custom has been unequivocally established. Subject to orders of my Lord the Chief justice, therefore, I refer this case to a larger Bench. The decision will be communicated to parties or their counsel. S. A. RAHMAN, J.‑This order will dispose of Regular Second Appeal No. 36 of 1949. It came up before me sitting in Single Bench, but, as an important point of custom was raised in the case, I referred‑it to a larger Bench for decision. The facts of the case briefly are that one, Khair Ullah Shah, left two sons, Ali Shah and Muhammad Shah. Ali Shah was surviv ed by his son, Fazal Shah, and Muhammad Shah by his son, Ghani Shah. The property involved in the case belonged to Ghani Shah and Fazal Shah. Ghani Shah died in 1908, without issue, but left a widow, Mst. Jafar Bibi, who succeeded to his property along with his mother, Mst. Aishan Bibi widow of Muhammad Shah. Later, on the demise of Mst. Jafar Bibi, the whole of the property was mutated in the name of Mst. Aishan Bibi. Fazal Shah died in 1939, leaving two daughters, Mst. Fatima Bibi and Mst. Aishan Bibi, but no male lineal descendant. Fazal Shah's property, on his demise, was also mutated in favour of Mst. Aishan Bibi, widow of Muhammad Shah. When Mst. Aishan Bibi, widow of Muhammad Shah, died in 1944, the whole of the property which belonged to Ghani Shah and Fazal Shah, was mutated in the names of the defendants in this case, who are collaterals of Ghani Shah and Fazal Shah, in the fifth degree. The two daughters of Fazal Shah then instituted the suit, out of which the present appeal has arisen, claiming to be entitled under custom as well as under :Muslim Law to the whole of this property as against the collaterals. The suit was resisted by the defendants who claimed the lands to be ancestral qua them. In the alternative, they alleged that the plaintiffs were not better heirs, even in respect of non‑ancestral property, whether under custom or under personal law. In the Court of first instance, it was held that the property was not ancestral qua the defendants. The plaintiffs were found entitled to succeed to two khasra numbers out of Fazal Shah's property which were non‑ancestral qua Muhammad Shah whose widow, Mst. Aishan Bibi, had succeeded to Fazal Shah's property collaterally. As one of the plaintiffs, namely, Aishan Bibi, had withdrawn from the suit, a decree was granted to Mst. Fatima Bibi alone for half of these khasra numbers. The rest of the claim in the suit was dismissed, as it was found that the plaintiffs were not better heirs as against the defendants, whether under custom or under Muslim Law. An appeal taken to the Court of the Additional District judge, Gujrat, by Mst. Fatima 'Bibi failed. Hence this second appeal. The area decreed in favour of Mst. Fatima Bibi no longer forms the subject of contest in this appeal. The main contention raised by Mr. B. Z. Kaikaus on behalf of the appellant is that the daughters of Fazal Shah were entitled to the same rights in respect of the suit property as their father, it alive, would have been. He invoked the principle of representation to support his contention. He argued in respect of Ghani Shah's property that, since his mother, Mst. Aishan Bibi, had succeeded to it, on her death, the inheritance had to be reckoned from Muhammad Shah, her husband, and not from the last male holder of the property and that the appellant's father was nearer to the former than the respondents. With regard to Fazal Shah's property, he put the argument in the alternative. He maintained that if the propositus was the last male holder, Fazal Shah, then his daughters would be preferential heirs in respect of non‑ancestral property ac against distant collaterals, and, if Muhammad Shah was to be regarded as the propositus, the daughters of Fazal Shah. In their right of representation, should exclude the remoter collaterals. The question then is whether a general right of representation exists in favour of females as is contended for by learned counsel. In support of the proposition that there is a general right of re presentation available to females, Mr. Kaikaus has strongly relied on Hashmat Ali v. Mst. Nasib‑un‑Nisa (A. I. R. 1925 P. C. 99), Faiz‑ud‑Din v. Aman Ali (56 P. L. R. 1910, D B.) (Supplement) and three unpublished judgments in Regular Second Appeal 1292 of 1947, Regular Second Appeal 2235 of 1926 and Regular Second Appeal 102 of 1946. He has also sought help from a judgment of the District Judge, Gujranwala, dated 22nd May 1942, in Bahawal v. Bholi, a copy of which is on the record. The Privy Council case appears to have proceeded on the basis of a special custom of a Sayyed family living in the Rohtak District. In that case, it was held that if there be a rule of custom that entitled an uncle's daughter to be her father's representative for the purpose of inheritance, it would be anomalous and arbitrary to withhold from a brother's daughter the same right, though there maybe no instance proved, in which the brother's daughter represented her father for purposes of inheritance. In the penultimate paragraph of the judgment, their Lordships observed as follows:‑ "That there is a customary rule which entitled Barkat Ali's widows to succeed as heirs to his estate for limited interests is not disputed ; it is equally clear that there is a rule of inheritance in this family which entitles brothers to succeed to the exclusion of sisters. Applying these two rules to the succession on the surviving widow's death, if Sarfaraz Ali had survived, he would have inherited Barkat Ali's property to the exclusion of his sisters. But Sarfaraz Ali was dead, and the plaintiff, his daughter, alleges that by the Code of Customary rules regulating succession in this family, the principle of representation is sanctioned, and she claims that by virtue of it she, as Sarfaraz Ali's daughter, in the absence of male issue, represents him any stands in his place. Their Lordships agree that representation is a part of the rules of succession in this family. It is settled by judicial decision that a son in matters of inheritance represents his deceased father, and the record discloses instances of succession in which a widow was recognized as the represen tative of her husband, and a daughter as the representative of a deceased uncle. It is thus shown that sex is not a bar to representation, but that widows and daughters in the absence of sons can claim the right in their favour". Mr. Kaikaus urges that a general right of representation can be spelt out of this passage in favour of females. This was the view accepted by Sharif, J., in Regular Second Appeal 102 of 1946, Muhammad Aslam Khan v. lust. Karam Nishan. The contest in that case was between a brother's daughter and eighth degree collaterals in respect of non‑ancestral property. With all deference, we do not find ourselves in agreement with the view taken by Sharif, J. In our opinion, their Lordships of the Privy Council did not intend to lay down generally that a right of representation was available to females in every case. The observations of their Lordships must be held confined to the particular facts of that case. The sentence to the effect that sex is no bar to representation does not lead to the inference that' females in every case, as of right, can invoke the principle of representation. It only means that where such a custom is proved to exist, sex would be no bar. In Allah Ditta v. AI$t. Hakim Bibi (Regular Second Appeal 1292. of 1947) the dispute was between the daughters of an uncle or brother on one side and ninth degree collaterals of the last male holder on the other. The property involved was non- ancestral and the parties were Jats of the Gujrat District. It was held by Cornelius, J., that the daughters of an uncle or brother were better heirs than the ninth degree collaterals. In this judgment, reference was also made to the judgment of the District Judge of Gujranwala in Bahawal v. 141st. Bholi, dated the 22nd May 1942. There also the parties were Jats of the Gujrat District and non‑ancestral property had been gifted by the widow of the last male holder to one, Bahawal. Reversion of the land was sought by Mst. Bholi and her sister, :41st. Raj Bibi, daughters of Khushi, a brother of the last male holder and their claim was resisted on the ground that there was in existence one, Muhammad Khan, who was a first cousin of the last male holder and whose right of succession was superior to that of the plaintiffs. Oral evidence was also led to show that among Jats, daughters had the right of representation in relation to property left by a collateral. This evidence was accepted by the learned District judge who also relied on the decision of this Court in Regular Second Appeal No. 2235 of 1926 Palhu v. Mst. Bhari, dated the 9th April 1931. The land involved in the latter case was ancestral in character and the contest was between collaterals of the ninth degree and a grand daughter of an uncle of the last male holder. The collaterals were held to have failed to establish their superior claim to possession. These cases were apparently decided on their own facts and, in our opinion, do not lend support to the existence of a general right of representation in favour of females. 56 P. L. R. 1910 (Supplement) clearly relates to another branch of the family of Sayyads whose members were found litigating in the Privy Council case. Here again, the decision proceeded on the basis of the special custom of the parties' family and it was held that a widow of a male descendant could represent her husband and a daughter could represent her father in the absence of male lineal descendants of the last holder of the property. On the death of the widow of the last male holder, consequently, one nephew's son was found entitled to succeed equally with the daughter of another. It is conceded by learned counsel that the rule contended for by him finds no mention in Rattigan's Digest of Customary Law, a book of undoubted authority on the subject of Punjab custom. We are unable to accede to the contention raised by Mr. Kaikaus that a general right of representation in favour of females exists. Such a principle would cut at the root of the agnatic theory which is the foundation of all customary rules in the Punjab. It is obvious that a general rule of this character would place daughters in the same position as collaterals and would lead to most astounding results. There is no evidence in the present case to establish a special right of representation of which the appellant could take advantage. It is clear that in respect of Fazal Shah's property, Mst. Aishan Bibi, widow of Muhammad Shah, succeeded collaterally. It is well‑settled that on the death of Mst. Aishan Bibi, the heirs have 'to be traced to her own husband, Muhammad Shah and not to the last male holder, Fazal Shah. That a widow can succeed collaterally in this District is borne out by the answers recorded under Questions 52 and 53 of the riwaj‑i‑am of the District, compiled by Williamson in 1922. The property to which she succeeded became an accretion to her own husband's estate. It would be sufficient to refer in this connection to the judgments in Akhtar Abbas v. Nazar Abbas (A. I. R. 1.946 Lah. 10, D. B.) and Chiragh Din v. Ujjagar Singh (A. I. R. 1946 Lah. 16, F. B.). Muhammad Shah, therefore, must be regarded as the propositus in respect of this property and it is not shown that under custom, the grand daughters of Muhammad Shah's brother, Ali Shah, such as the plaintiffs in this case are, would be entitled to succeed in preference to collaterals. The case of the plaintiffs with regard to the property left by Ghani Shah is equally weak. Here also, Mst. Aishan Bibi succeed ed as the mother of Ghani Shah, to his property and, when searching for her successors, we have to regard Muhammad Shah as the propositus. Even if Ghani Shah could be referred to as the last male holder, the daughters of Fazal Shah would have no case as against the collaterals of Muhammad Shah. For the proposition that when the mother succeeds, she does so as the widow of her own husband and on her death, inheritance has to be traced to the latter and not to the last male holder, reference may be made to Ghulam Muhammad v. Muhammad Bakhsh (4 P. R. 1891, F. B.), Mst. Fateh Nishan v. Ahmad Shah (46 P. R. 1914, D. B.), Mamun v. Mst. Jowai, (A. I. R. 1927, Lah.329;, Shiromani Gurdwara Parbandhak Committee v. Harcharan Singh (A. I. R. 1934 Lab. 1, D. B.), Sundar Singh v. Mst. Jowala Devi (A. I. R. 1934 Lah. 205, D. B.) and Kanshi Ram v. Situ (A. I. R. 1934 Lah. 781, D. B.). The general principle applied in these cases was that the property of a person, who dies issueless, first reverts to the ancestor who left issue and then descends to his lineal descendants. The line that left no descendants is deemed not to have existed at all. It is true that a different rule has been applied in the case of sisters of the last male holder, whose position cannot be assimilated to that of daughters ; see in this connection Hamira v. Ram Singh (134 P. R. 1907, F. B.), There is no doubt a logical inconsistency between the two rules but custom is not always amenable to the rules of logic. It is significant in the present case that one of the plaintiffs gave up her suit. We are not satisfied, therefore, on the basis of authority or the specific evidence in the present case that the appellant had a preferential claim as against the collaterals either in respect of Fazal Shah's property or with regard to Ghani Shah's property. Learned counsel for the appellant pointed out that it was rather hard on the daughters of Fazal Shah that they should be deprived of their father's non‑ancestral property in competition with the collaterals, but it is now too late in the day for the daughters of Fazal Shah to raise this contention as they allowed the widow of Muhammad Shah to succeed on the death of their own father. The appeal has no force. We dismiss it with costs. A. H. Appeal dismissed.